Judge finds USFWS guilty using false data spotted owl

Submitted by Charles Gossett on 3/14/02. ( Marl4570@aol.com ) 205.188.209.44

Wahington Times
The Forest Service did not have a "rational basis" for halting
the timber sale to Wetsel-Oviatt Lumber Company, said the previously
undisclosed ruling by Federal Claims Court Judge Lawrence S.
Margolis.
The timber company's lawyer, Gary Stevens, called the Forest
Service data "junk science."
The revelation of bad science comes on the heels of other
questionable actions taken by federal officials in the name of
protecting endangered species.
False samples were submitted into a national lynx survey, and
in other cases faulty information was used to cut off water to
farmers and to establish habitat in several states for endangered
fish species.
Compensating lumber companies for this and 30 other California
timber sales canceled in the 1990s because of the spotted owl
already has cost the government $15 million, according to a Forest
Service document.
In addition, the federal government agreed last week to pay
Wetsel-Oviatt $9.5 million for four canceled timber sales. So far
the Bald Mountain timber bid is the only case taken to trial.
Judge Margolis ruled the Forest Service action was "arbitrary,
capricious and without rational basis." He also found that the
officials knew their findings were faulty when they ordered the sale
canceled.
"The Forest Service therefore breached its contractual
obligation to fairly and honestly consider Wetsel's bid on the
sale," he said after the four-day trial in 1998.
Two Forest Service scientists used aerial and satellite
photographs to identify old-growth trees. That indicated
a "disturbance index" for spotted owl habitat - meaning logging in 5
percent of the proposed sale area would affect the owl's habitat.
But the scientists did not verify their findings with a ground
inspection.
Two reviews of the findings - one by a private contractor and
another by the government - said the analysis was unreliable, but
the timber sales were canceled nonetheless.
Ecologist Jo Ann Fites-Kaufman was asked during the trial if
she believed her assessment was valid. "I believe that I attempted
to conduct a valid accuracy assessment, but my understanding since
the time that I did that is it probably wasn't an appropriate method
to use," Mrs. Fites-Kaufman responded.
Previously, a government witness and leading expert on the
California spotted owl, Gerry Verner, testified the study was
sound. "I came away with the strong impression that it was, in fact,
within my gestalt notion of what suitable nesting habitat is after
having walked through dozens of places like this throughout the
Sierra Nevada and in other parts of the owl's distribution
throughout the West," Mr. Verner said.
As he drove through the forest, Mr. Verner said, "I had the
feeling I was never outside a stone's throw of suitable foraging
habitat at least."
"I said to a couple of fellows there, 'If there's not a pair of
spotted owls occupying this site, I'll spring for a Chateaubriand
for two.' I was that convinced that there's a pair of owls in there
that has not, at this point, been detected yet," Mr. Verner said.
Mr. Stevens, who represented Wetsel-Oviatt in the case, said
the Forest Service bowed to pressure from environmental groups and
used the same erroneous data to cancel the company's other four
timber sales.
Other questionable actions have been taken by federal officials
in the name of protecting endangered species.
Last week, two federal investigations harshly criticized
scientists for submitting false samples into a national lynx survey,
although the federal government has declined to prosecute or fire
the biologists.
On Monday, the National Marine Fisheries Service agreed to
rescind critical-habitat designations for 19 West Coast salmon and
steelhead populations in a court case brought by home builders who
said the decision was based on bad science.
The National Association of Home Builders (NAHB) brought the
suit in U.S. District Court for the District of Columbia and
produced a "smoking gun" memo that said no analysis of habitat was
ever performed "because we lack information."
"When we make critical habitat designations, we just designate
everything as critical, without an analysis of how much habitat" is
needed for salmon population, said the 1998 memo written by a high-
level government official.
The designation challenged by NAHB was for a geographic region
encompassing 150 watersheds, river segments, bays and estuaries
throughout Washington state, Oregon, California and Idaho.
The House Resources Committee is holding a series of hearings
on the misuse of science in enforcing the Endangered Species Act
(ESA). On March 20, the committee will review legislation to amend
the act.

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